Exhaustion of all other sources to obtain the requested materials

Notion(s) Filing Case
Decision on Request of the USA for Review - 12.05.2006 MILUTINOVIĆ et al.

25. The Appeals Chamber considers that requiring an applicant to make a showing that he has exhausted all other possible avenues that may provide access to the information is too onerous and could inhibit the right to a fair trial. However, the Appeals Chamber recalls that it has held that a Trial Chamber’s binding order to a State to produce documents or information must be “strictly justified by the exigencies of the trial”[1] in light of the reliance of the International Tribunal on “the bona fide assistance and cooperation of sovereign States.”[2] Therefore, the Appeals Chamber holds that it is reasonable under the necessity requirement for an applicant to demonstrate either that: 1) it has exercised due diligence in [trying to obtain] the requested materials elsewhere and has been unable to obtain them; or 2) the information obtained or to be obtained from other sources is insufficiently probative for a fair determination of a matter at trial and thus necessitates a Rule 54bis order.

[1] Kordić and Čerkez Review Decision, para. 41 (internal citation omitted).

[2] Blaškić Judgement on Review Request, para. 31 (internal citation omitted).

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ICTY Rule Rule 54 bis